Supreme Court ruling puts soldiers at great risk

June 20, 2008|By Kyndra Rotunda

When Supreme Court Chief Justice John Roberts was confirmed, he told the U.S. Senate that justices should act like umpires. They should call the balls and the strikes but shouldn't step up to bat. A majority of the court, led by Justice Anthony Kennedy, ignored Roberts' advice and suited up. But they're not playing baseball. They're suiting up to run America's war.

The court has decided to grant constitutional rights to detainees held in Guantanamo Bay. Now detainees can challenge their detention before U.S. judges in U.S. courts. Because Kennedy says so, military commanders must justify battlefield captures and prove to a U.S. judge that decisions they made on the ground -- in a faraway land during a battle -- were justified. Kennedy admits that the court has not done this before and that there is no case precedent.

Not only does this decision come out of left field (remember that during World War II the United States held 400,000 prisoners of war on U.S. soil without granting them access to U.S. courts) but, tragically, their decision puts American troops at risk and will lead to more U.S. deaths on the battlefield because it makes it more difficult for soldiers to detain the enemy.

What's more, the court has no reason to step in. Under current rules, detainees held in Guantanamo Bay receive more rights than POWs under the Geneva Conventions. Roberts, in his dissent, called existing military procedures "the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants."

As a JAG officer (a lawyer) in the Army Reserves, I have been deployed three times in the global war on terror. I was a legal adviser in Guantanamo Bay and a prosecutor at the Office of Military Commissions. I have seen the procedures that Roberts discusses -- and the conditions at Guantanamo Bay -- firsthand. The U.S. military gives all detainees in Guantanamo Bay elaborate proceedings where they can call and cross-examine witnesses and rebut the evidence against them. They are even assigned a personal representative to help them through the process. The military affords all detainees these procedural rights, even those captured in battle with AK-47s in their hands. Under the Geneva Conventions, POWs have fewer rights. They receive a brief hearing with no lawyer and no personal representative.

And what happens when the U.S. decides that a detainee is an enemy combatant? The detainee stays at Guantanamo Bay. But the digs aren't bad. Detainees enjoy up to 12 hours of recreation time a day where they can play sports like Ping-Pong, basketball and soccer. They can work out in the exercise room, take various classes, garden, watch videos and go to the library. They are guaranteed eight hours of sleep every night and 20 minutes of uninterrupted prayer time five times a day. Guards can't interrupt detainees during prayer times, even if they're not praying.

The existing procedures (the ones the Supreme Court thinks are deficient) are so generous that the military paroles hundreds of suspected terrorist detainees back to the battlefield, although no international law, including the Geneva Conventions, requires it. At least 5 to 10 percent of those released re-enter the fight and put soldiers' and civilians' lives at risk. One killed a judge who was leaving a mosque in Afghanistan; another went back to fighting the U.S. and assumed leadership of an Al Qaeda-aligned militant faction in Pakistan; and, most recently, a released detainee became a suicide bomber.

The problem isn't that the U.S. is releasing too few detainees -- it is releasing too many. Even Kennedy seems afraid to let these detainees loose. His opinion says that a remedy for violating their constitutional rights might be conditional release -- or no release at all.

Australian detainee David Hicks wore an $800 Brooks Brothers suit to his trial in Guantanamo Bay, paid for by the U.S. government. Hopefully, the government will rethink that practice when it hauls 200-plus detainees from Guantanamo Bay into the U.S. for their hearings. It is a strange and perverse system that awards terrorists who attack the U.S. with constitutional rights and a better wardrobe.

Justice Antonin Scalia, in his dissent, chastises the Supreme Court for warping our Constitution and blatantly misconstruing case precedent. But his last sentence is the most poignant: "The nation will live to regret what the court has done today."

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Army Maj. Kyndra Rotunda was a legal adviser in Gitmo and a prosecutor at the Office of Military Commissions. She is the author of "Honor Bound: Inside the Guantanamo Trials."